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Threat Level Privacy, Crime and Security Online
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‘John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years

  • By Kim Zetter Email Author
  • August 10, 2010  | 
  • 2:42 pm  | 
  • Categories: Surveillance, The Courts

The owner of an internet service provider who mounted a high-profile court challenge to a secret FBI records demand has finally been partially released from a 6-year-old gag order that forced him to keep his role in the case a secret from even his closest friends and family. He can now identify himself and discuss the case, although he still can’t reveal what information the FBI sought.

Nicholas Merrill, 37, was president of New York-based Calyx Internet Access when he received a so-called “national security letter” from the FBI in February 2004 demanding records of one of his customers and filed a lawsuit to challenge it. His company was a combination ISP and security consultancy business that was launched in the mid-90s and had about 200 customers, Merrill said, many of them advertising agencies and non-profit groups.

Despite the fact that the FBI later dropped its demand for the records, Merrill was prohibited from telling his fiancée, friends or family members that he had received the letter or that he was embroiled in a lawsuit challenging its legitimacy. He occasionally showed up for court hearings about the case, but sat silently in the audience with other court observers. In 2007, he was prevented from publicly accepting an award for his courage from the American Civil Liberties Union, because he was not allowed to identify himself as the plaintiff in the case.

U.S. District Judge Victor Marrero in New York finally released Merrill partially from the gag order (.pdf) on July 30, which Merrill revealed publicly only on Monday.

“After six long years of not being able to tell anyone at all what happened to me – not even my family – I’m grateful to finally be able to talk about my experience of being served with a national security letter,” Merrill said in a statement. “Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their users without a court order. I hope my successful challenge to the FBI’s NSL gag power will empower others who may have received NSLs to speak out.”

A national security letter is an informal administrative letter the FBI can use to secretly demand customer records from ISPs, financial institutions, libraries, insurance companies, travel agencies, stockbrokers, car dealerships and others. NSLs have been used since the 1980s, but the Patriot Act, passed after the September 11, 2001 terrorist attacks, and a subsequent revision in 2003 expanded the kinds of records that could be obtained with an NSL.

With an NSL, the FBI does not need to seek a court order to obtain such records, nor does it need to prove just cause. An FBI field agent simply needs to draft an NSL stating the information being sought is “relevant” to a national security investigation.

The letters come with a life-long gag order, so businesses that receive such letters are prohibited from revealing to anyone, including customers who may be under investigation, that the government has requested records of transactions. Violation of a gag order can be punishable by up to five years in prison.

The gag orders raise the possibility for extensive abuse of NSLs, under the cover of secrecy. Indeed, in 2007, a Justice Department Inspector General audit found that the FBI, which issued almost 200,000 NSLs between 2003 and 2006, had abused its authority and misused NSLs.

In Merrill’s case, although the letter’s gag order “was totally clear that they were saying that I couldn’t speak to a lawyer” about it, he immediately contacted his personal attorney, and together they went to the ACLU in New York, which agreed to represent him.

“My gut feeling is I’m an American,” Merrill said, in an interview with Threat Level on Tuesday. “I always have a right to an attorney. There’s no such thing as you can’t talk to your attorney.

“I kind of felt at the beginning, so few people challenge this thing, I couldn’t just stand by and see, in my opinion, the basic underpinnings of our government undermined,” he continued. “I was taught about how sophisticated our system of checks and balances is . . . and if you really believe in that, then the idea of one branch of government just demanding records without being checked and balanced by the judicial just is so obviously wrong on the surface.”

Merrill and the ACLU filed the lawsuit under the name “John Doe,” challenging the legality of the letter and asserting that customer records were constitutionally protected information. Merrill said the NSL, which listed 16 categories of records, including e-mail and billing records, was “very broad.”

“It was kind of open ended,” he said. “It went through a list of things and then said ‘and anything else.’ The implication was just send us everything and the kitchen sink.”

Merrill wouldn’t say how many records he had that were relevant to the request but said in general, “In the most broad understanding of what is electronic communication transaction records, I probably had like thousands and thousands of records on each client, if you consider that you host things and you’re using software that creates log files. . . . ISPs have a lot of records on every client typically. They may have records of every time you posted something, of every web site you visited.”

Over the years the case progressed, Merrill was careful not to disclose his identity. At one point he attended a packed hearing — filled with law school students and media — but he was careful not to speak with anyone.

Friends began to question whether he was John Doe when he was publicly identified with a second case involving a grand jury subpoena from the Secret Service for customer records related to the news site IndyMedia. In that case, no gag order was imposed. Merrill said he was forced to lie when asked about John Doe or simply refused to answer.

“It put me in a very difficult position,” he said.

In 2007, the ACLU granted “John Doe” a liberty award, along with four Connecticut librarians who also filed a legal challenge over NSLs. Because of the gag order against Merrill, the ACLU had to present his award to an empty chair.

In December 2008, the Second Circuit Court of Appeals ruled that some of the NSL gag provisions were unconstitutional, in part because they limited judicial review of the gag orders and forced courts to defer to the government’s assertions about the necessity of a gag order and also thwarted the ability of recipients to challenge a gag order. The case was sent back to the U.S. District Court for the Southern District of New York, forcing the government to justify the constitutionality of the gag order imposed on Merrill.

In June 2009, the government introduced secret evidence to the court to justify continuing the gag order, claiming that if information were revealed about the letter it would harm an ongoing investigation. Merrill and his attorneys were prevented from learning the specifics of the evidence in order to refute it. The government was then ordered by the court to produce an unclassified summary of its evidence.

The ACLU worked hard to negotiate a partial gag-lift with the government that allowed Merrill to finally identify himself, while still keeping the details of the letter secret. In return, Merrill and the ACLU agreed to drop their appeal of the case.

Although the case helped expose the secrecy around NSLs and resulted in some First Amendment progress for entities receiving such requests — Congress amended the law to allow recipients to challenge NSLs and gag orders, and the FBI must now also prove in court that disclosure of an NSL would harm a national security case — the fight over NSLs is not over. The Obama administration has been seeking to expand the FBI’s power to demand internet activity records of customers without court approval or suspicion of wrongdoing. If granted, the data sought without a court order could expand to include web browser and search history, and Facebook friend requests.

“Even though this case has resulted in significant improvements to NSL procedures, innocent Americans’ private records remain too vulnerable to secret and warrantless data collection by the FBI,” said Melissa Goodman, staff attorney with the ACLU National Security Project in a statement. “At a minimum, the FBI should have to show individual suspicion before it issues an NSL for an individual’s personal information and invades Americans’ right to privacy and free speech on the Internet.”

The FBI’s use of national security letters to get information on Americans without a court order increased from 16,804 in 2007 to 24,744 in 2008. The 2008 requests targeted 7,225 U.S. people.

In the 2007 inspector general’s report, investigators found that the FBI had failed to adequately justify some letters, had evaded limits on (and sometimes illegally issued) NSLs to obtain phone, e-mail and financial information on American citizens, and had under-reported the use of NSLs to Congress.

About 60 percent of a sample of the FBI’s NSLs did not conform to Justice Department rules, and another 22 percent possibly violated the statute because they made improper requests of businesses or involved unauthorized collections of information.

Subsequently, the number of NSLs issued in 2007 dramatically dropped from 49,000 to 16,000, but has rebounded in recent years.

Merrill’s experience with the case has prompted him to launch a non-profit, the Calyx Institute, aimed at educating the technology and telecommunications industry and developing best practices and tools for safeguarding the privacy of customers.

“I feel there’s a lot of work to be done,” he said. “The case has made me realize that just one or two people standing up can have a great effect. I either want to inspire others to follow the example . . . or develop technology that makes it more difficult for people to be snooped on.”

Photo: ACLU

See also:

  • Bush Grabs New Power for FBI
  • FBI Use of Patriot Act Authority Increased Dramatically in 2008

Tags: aclu, FBI, national security letter
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  • Posted by: danielpauldavis | 08/10/10 | 4:10 pm |

    “the letter’s gag order “was totally clear that they were saying that I couldn’t speak to a lawyer” about it”
    We are at the end of our little experiment in political science here when a bureau can say this and spend six years getting away with saying it.

  • Posted by: chriswininger | 08/10/10 | 4:18 pm |

    This guy is a true American hero. This is how are system is supposed to work. Its what citizenship is all about. Its not always easy, but its your duty in a participatory government. If we stop participating decisions will be made for us and often to our detriment. Thank you Nicholas Merrill.

  • Posted by: JohnnyLuv | 08/10/10 | 5:50 pm |

    “The Obama administration has been seeking to expand the FBI’s power to demand internet activity records of customers without court approval or suspicion of wrongdoing. If granted, the data sought without a court order could expand to include web browser and search history, and Facebook friend requests.”

    Utterly disgusting. Land of the free? Not anymore.

    Nicholas Merrill should consider running for office we need more upstanding individuals representing us.

  • Posted by: trilobug | 08/10/10 | 6:28 pm |

    Thanks man. Keep fighting the good fight.

  • Posted by: previso | 08/10/10 | 6:32 pm |

    The notion that any government will support the freedom of the individual over the power of the State is an illusion which is perpetually professed as an American value, as opposed to the reality we daily live in. “Other” countries are based on freedom granted from the top down. Not us, right? Although our culture assumes power is granted by the people to the State, all freedoms retained by the people, the practice has been the opposite.
    The Red Scare, the Cold War, the Islamic Threat, all have been justifications by the State to overrule the foundation of our Republic.
    It is not an accident the Act is called “Patriot”. To contest it is the opposite in the eyes of the Government.

  • Posted by: vdev | 08/10/10 | 6:55 pm |

    Why does FBI need this power on their own say-so? Such a scenario is ripe for abuse, and it’s clear that they have abused it, not just in this case.

    Instead of allowing FBI to authorize its own searches, let’s expand, slightly, the scope of the Foreign Intelligence Surveillance Court. Many of the FBI letters might be related to to foreign activity anyhow, but let’s explicitly expand the Court’s scope to deal with warrants etc for both domestic and foreign intelligence matters.

  • Posted by: technophile | 08/10/10 | 8:15 pm |

    More paranoid spying!!! How about sending some people to listen in the goddamn caves and quit making my 90 year old WWII vet grandpa takes his MF shoes off at the airport!

  • Posted by: loudboy77 | 08/10/10 | 9:17 pm |

    I think all citizens of modern democracies are being reminded lately that if you don’t participate in the democratic process and exercise your rights- you’re sure to lose them. We’ve been lazy over the last 20 years I think, and the governments (and the invisible puppeteers) are taking full advantage. It’s time to get involved- write a letter to your local representative, call talk-back radio- SPEAK UP about things. It actually does make a difference.

  • Posted by: daren_gray | 08/10/10 | 9:40 pm |

    Assassination lists, indefinite detention, torture, blatant censorship, security letters, gag orders.
    .
    How the fuck can anyone pretend the United States is not a fascist police state? I mean what’s left?

  • Posted by: daren_gray | 08/10/10 | 9:41 pm |

    Obama hasn’t changed shit. Bush Jr.

  • Posted by: quietmouse | 08/10/10 | 11:58 pm |

    It’s disappointing how very little WIRED and its black helicopter conspiracy theorists really understand about National Security Letters. If I were a betting man/woman, I wager quite a bit that probable cause is a very necessary part in order to get a NSL. Maybe instead on engaging in yellow sensationalistic semi-journalism, WIRED could actually grow up a little and educate itself and its readership on what actually is needed for a NSL to come to fruition. Until that time, WIRED is merely just a wannabe publishing rumor and innuendo.

  • Posted by: happymissle | 08/11/10 | 1:11 am |

    Wow, a man brave enough to stand up for the constitution and smart enough to get away with it! Another few million like him and we might have a country that begins to live up to its ideals.

    @daren_gray
    Well with that list you gave, whats left? Well that would be the part of the political spectrum that we are not using. Seems to be little visible differences in Obama’s actual policy from Bush. Trying to expand warrantless powers? Most disappointing.

    @quietmouse
    Well by the constitution, a court order is required. The details of requesting a NSL letter is irrelevant if it is in contradiction with the highest law of the land. If court orders are too cumbersome, well there is a process to create amendments. Nothing less should be tolerated in America.

  • Posted by: Snidely70448 | 08/11/10 | 3:29 am |

    It’s a shame that I had to hold my nose and vote for George W. Bush – twice – because the Democratic alternatives were worse. And I would have preferred to have had a Republican nominee other than Senator McCain, but I couldn’t vote for President Obama because of his proven allegiance to the hard left – now more proven than ever. Bad enough giving Patriot act powers to a President Bush, but such powers in the hands of a President Hilary Clinton or Barak Obama is truly terrifying.

  • Posted by: diginess78 | 08/11/10 | 4:12 am |

    @quietmouse:
    http://en.wikipedia.org/wiki/National_Security_Letter
    National Security Letters “require no probable cause or judicial oversight. They also contain a gag order, preventing the recipient of the letter from disclosing the letter was ever issued”.
    Do you know different? Speak up, because I don’t.
    After reading the Wikipedia article, it looks like the only control on it is that the number of NSLs are reported to Congress every year. Also, it looks like they are sending them to 50K US citizens a year.

  • Posted by: KPinSEA | 08/11/10 | 5:33 am |

    No American law enforcement agency can legitimately ‘give itself permission’ to bypass a demonstration of probable cause, and can not deny the right to counsel to any American. No law pretending to grant this power is constitutional.

    The truly disappointing part of all this is how millions of Americans have not compelled their Congressmen to eliminate this practice completely. Rights not defended are all too soon lost.

  • Posted by: Ezuz | 08/11/10 | 6:23 am |

    Things like this remind me why I don’t want to live in America, even though its probably a wonderful country. In my opinion the power that the government and its agencies have is too much.

  • Posted by: Nym | 08/11/10 | 6:45 am |

    The use of NSL’s is wildly out of control. Frankly, if they want something they can’t get a warrant for, perhaps they shouldn’t be going after it. This is yet one more indication of simply lazy law enforcement work, and it’s shoddy too. They need higher standards than this crap.

  • Posted by: amanfromMars | 08/11/10 | 7:32 am |

    “No American law enforcement agency can legitimately ‘give itself permission’ to bypass a demonstration of probable cause, and can not deny the right to counsel to any American. No law pretending to grant this power is constitutional.” …. Posted by: KPinSEA | 08/11/10 | 5:33 am |

    Then are such agencies Non American and the law, a private and foreign tool for abuse and misuse. There are traitors leading the pack searching for the evidence to hide which betrays them, whereas leadership groups simply forge ahead and just do IT Better in Betas in Virgin Lawless Fields …… which would probably be as CyberSpace to Many, if not even to Most.

    If one has anything to hide, for whatever mad reason, don’t plug into the Internet and share your keystrokes and mouse hovers, for they are powerful future indicators of past actions and dark passions, and can always easily lead to that which is hidden being spectacularly exposed …… to remove the burden that would be so haunting and daunting/controlling.

  • Posted by: ericlr | 08/11/10 | 9:38 am |

    The truly sad thing is that, for every Nicholas Merrill out there who fought back, there were probably hundreds more cowardly ISP’s who were perfectly content with just following orders and undermining American freedom and rights in the process.

  • Posted by: g33kman | 08/11/10 | 10:17 am |

    Stick it to the man!

  • Posted by: RyanKenny | 08/11/10 | 11:57 am |

    “If only we knew the due process requirements of a National Security Letter” is not good enough argument to support this travesty of justice. There are, for sure, times when we have to black out information for the purposes of national security. But then the Government has the burden of justifying its activities WITHOUT revealing that information. There is no other future that guarantees individual rights.

  • Posted by: regulas | 08/11/10 | 12:40 pm |

    It’s getting to the point that it may be best to drop technology and get Amish. That is to say no internet, read papers again, no online banking and no cell phone. If the banks get anymore wishy washy maybe keep the money under the mattress to. I will keep my PS3, love the games.

  • Posted by: mdhunn | 08/11/10 | 12:59 pm |

    What’s really sad in all of this is that the Tea Party, currently one of the most visible groups trying to put the government back in our hands, is constantly being attacked. What’s worse is that some people buy it. If you think the Tea Party is mostly a bunch of racists & etc. Then I have one question for you: Do you even know anyone who is really in the Tea Party, or are you just going on what others have told you?

  • Posted by: omems | 08/11/10 | 2:00 pm |

    Thanks, Mr. Merrill, for sticking with it. Without people like you, (and the ACLU, EFF, too) we’d have no hope whatsoever. It’s depressing how few people stand up for what’s right/their rights.

  • Posted by: _scramjetter_ | 08/11/10 | 2:13 pm |

    This is why sites like Wikileaks exist. As long as there is a force that exists to thwart privacy under the banner of national or corporate interests, there will be an equalizer. You want our secrets? Give us yours.

  • Posted by: emptyvoid | 08/11/10 | 3:06 pm |

    The comments here are all so very true, remember the ole bummer sticker..

    If you think America is free, stop paying your taxes.

  • Posted by: PROADVENTURER | 08/12/10 | 3:00 pm |

    If this NSL does not require a court to OK what do you need a court order to challenge it? Aside from the threats in the letter, what happens if you openly challenge it?

  • Posted by: GreyGeek | 08/13/10 | 12:19 pm |

    What is truly mind-boggling is that the FBI and the people who sign these NSLs cannot see that these letters destroy what they are claiming to protect – freedom! Presidents and Congressmen since 1981 cannot see that, and most recipients did not have the courage of Mr. Merrill to stand up against this tyranny.

    @hdmunn:
    You ask if folks know who is in the Tea Party. Do you know who started it and bought the buses and paid demonstrators to get it going? I got an email from Brad Stevens, the Nebraska staffer for “Americans For Prosperity” asking me to attend a Tea Party rally at my state capital building. Running Linux, I did a “whois” on that organization and learned who purchased their domain name. I followed their trail to the Republican party and offices on “M” street in Washington, a building full of lobbyists. One of the two individuals who bought that domain name, and a dozen others with similar slants, was a “strategic campaign consultant, direct mail and telemarketing specialist, grassroots and grasstops operative has helped … service a broad range of clients including George W. Bush for President; Victory 2000 at the national level; Georgia Republican Party; Florida Republican House Caucus; members of Congress “, which explained why they also owned several domain names of pseudo grass roots organizations politicizing against health care reform and fully supporting about every Republican issue that comes along.

    When they realized that THEIR roots were being outed they re-registered their domain with anonymous registers to keep their connection secret, but it was too late. SourceWatch posted information on their history and activities: www sourcewatch org/index.php?title=Americans_for_Prosperity

    The Tea Party is as “independent” from the Republican Party as MoveOn.org and DailyKos.com are independent from the Democrat Party.

    Both parties are knee deep in accepting bribes (a.k.a. “campaign contributions”) from corporate and non-profits special interests, and “campaign” 24/7/365 knowing that if they don’t get re-elected they can convert their “campaign war chest” to personal funds and retire with life-long benefits that you and I will NEVER see. That’s why we have to fix congress first. www fixcongressfirst org

  • Posted by: paulhoward | 08/13/10 | 7:49 pm |

    “The ACLU worked hard to negotiate a partial gag-lift with the government that allowed Merrill to finally identify himself, while still keeping the details of the letter secret. In return, Merrill and the ACLU agreed to drop their appeal of the case.”

    So basically they caved. The only way to have found out what this country is really all about would have been to have it decided once and for all – hopefully at the supreme court level. Now that will not happen.

    I like to think I’d have opted for the 5 years in prison. I’d like to see one of those letters posted on the internet. If the info is that important why exactly can’t they get a court order.

  • Posted by: pupplesan | 08/14/10 | 10:53 am |

    In 2007, 41,059 American citizens died in motor vehicle accidents, 15,707 were murdered, 34,598 commited suicide, about 85,000 died from alcohol-related illness and nearly half a million Americans lost their lives from tobacco. In the same year, precisely zero Americans died from terrorist events inside the United States. Now, tell me again please, why are we supposed to endure the erosion of freedom in this country to protect us from shadows while we tolerate and barely notice the carnage of daily life?

  • Posted by: privatefrank | 08/14/10 | 11:21 am |

    Nick Merrill is a true American hero for standing up to the power of US government snooping and tyranny. Remember, throughout 6000 years of human history, the greatest enemy of free people has always been government power. We see it here in the US thousands of times a year. Stand up to it and defy the FBI when they say you can’t talk! Teach them a lesson about Freedom of Speech and the Constitution!
    I have practical advice for ISPs, phone companies, and libraries. Don’t make or keep any records that aren’t absolutely essential for your business. ISP software routinely makes log files of everything. If you pay a monthly fee for unlimited internet or phone calls then there is NO reason for a provider to ever make records of what emails you send, what you downloaded, or what phone numbers you called. The only records they need are that you purchased their service and paid your bill. A company smart enough to advertise that they respect customer privacy by never making usage records would probably get a huge amount of business right away.

  • Posted by: doubleplusungood | 08/16/10 | 9:45 am |

    @quietmouse

    What’s disappointing is your ignorance, because there is simply no excuse for it. Apparently you didn’t even read the article, where it quotes directly that a government audit found multiple instances of abuse when it came to the FBI’s use of NSLs. No black helicopters or tin foil hats. So no opportunity to roll out tired, hack insults…that just sucks doesn’t it? Sadly, there will always be cheerleaders like you, defending tyranny. What’s even funnier is your naivete in believing that the requirement (which doesn’t exist anyway) that a law enforcement agency manufacture ‘probable cause’ before sending out an NSL is somehow a check on the use of that power. Maybe you should follow your own advice and squeak a little quieter.

  • Posted by: Trollout | 08/16/10 | 12:41 pm |

    Merrill , the ACLU and the DNC do not want the contents of that NSL released.
    Some of the people under surveillance were DNC operatives. The crime under investigation was actually violations of the Voting Rights Act. So good luck seeing this story repeated in the media, they are too afraid the details will come out … just in time for the elections.

    /So yeah Merill is a great champion of protecting the Democrats’ radical ops.

  • Posted by: UKWill | 08/17/10 | 11:50 am |

    The FBI and law enforcement are not to blame here. Our legislators are the ones who brought on this big-brother culture, and they are exclusively to blame. The FBI and law enforcement are only following the rules written by Congress. This problem begins and ends at Capitol Hill, where the ultimate power lies to stop this kind of abuse.

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